Poffenberger v. Risser

• Decision Date: 09 July 1981
• Docket Number: No. 109,109
• Citation: 290 Md. 631,431 A.2d 677
• Parties: Howard W. POFFENBERGER, Jr. v. Donald E. RISSER et al.
• Court: Maryland Court of Appeals

Page 631

290 Md. 631

431 A.2d 677

Howard W. POFFENBERGER, Jr. v. Donald E. RISSER et al.

No. 109.

Court of Appeals of Maryland.

July 9, 1981.

Russell R. Marks, Hagerstown (Kenneth J. Mackley and Mackley, Gilbert & Marks, Hagerstown, on the brief), for appellant.

Conrad W. Varner, Hagerstown, for appellees.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DIGGES, Judge.

After the Court of Special Appeals affirmed the summary judgment entered by the Circuit Court for Washington County in favor of respondent-defendant Donald E. Risser, we granted certiorari to consider the propriety of the trial court's determination that this suit instituted by petitioner Howard W. Poffenberger was barred by limitations. ¹ For reasons to be elucidated presently, we conclude that since there are factual disputes which must be resolved before this litigation may be properly concluded, vacation of the summary judgment is required.

There being no supporting or opposing affidavits relevant to the issues before us, we extract from the pleadings, attached exhibits, deposition and admissions the following: Howard W. Poffenberger, Jr., purchased in the summer of 1972 an unimproved lot in Brightwood Acres, a planned development located in Hagerstown, Maryland. The property was acquired subject to a number of restrictions that were enumerated on the recorded plat of the subdivision, one of which directed that "no portion of any building except open porches and steps shall be located within 15 feet of any other side lot line." Following his purchase, owner Poffenberger allegedly contracted with builder Risser for construction of a home that would comply with all relevant restrictions and which was to be situated in the center of the lot. Fabrication of the dwelling was completed in December, 1972, and the Poffenberger family began their occupancy sometime during the following month. The home was erected in a new section of Brightwood Acres when no structures of any type were located on the adjoining several lots. In March, 1976, the parcel to the south of the Poffenberger property was surveyed preparatory to building a house there, and the petitioner became aware that his home had been located so as to violate the fifteen foot side lot set back requirement; it was fifty-one feet from the north side lot line, but only eight feet from the south line. Reacting to this discovery, Mr. Poffenberger initiated the present suit by filing a multi-count declaration in the Circuit Court for Washington County against builder Risser alleging both breach of contract and negligence, to which, in addition to a general denial, the respondent filed a special plea that the action was barred by limitations.

The statute relied on by Mr. Risser in support of his limitations plea is Maryland Code (1974, 1980 Repl. Vol.), section 5-101 of the Courts Article, which reads:

A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.

There being an absence of statutory direction, the question when an action accrues is left to judicial determination. Harig v. Johns-Manville Products, 284 Md. 70, 75, 394 A.2d 299, 302 (1978). Thus, when the statutory bar of limitations is made an issue, it becomes necessary to judicially determine the date the suit accrued because that time triggers the running of the statute. Depending upon the nature of the assertions being made with respect to the limitations plea, this determination may be solely one of law, solely one of fact or one of law and fact. In this case, builder Risser fixes the accrual date as the time when construction of the home began, or at the latest, when the Poffenberger family took up residence in it; either date would result in section 5-101 barring this suit. On the other hand, owner Poffenberger contends (as he must in order not to be time barred) that because of the latent nature of the wrong, his action did not accrue until he knew or should have known of its existence that is, when the next door lot was surveyed a little more than a year before this suit was instituted.

In Maryland, the general rule heretofore has been stated to be that the running of limitations against a right or cause of action is triggered upon occurrence of the alleged wrong, and not when it is discovered. Leonhart v. Atkinson, 265 Md. 219, 223, 289 A.2d 1, 3-4 (1972). However, the harshness of this general rule was readily observed and has in this State led to the creation of both legislative and judicial exceptions to it one among them, the "discovery rule." ² Although perhaps timidly, the Court first applied the discovery rule in Maryland (and some suggest was the first to embrace the concept in the nation, see Note, The Statute of Limitations in Actions for Undiscovered Malpractice, 12 Wyo.L.J. 30, 34 (1957)), nearly three quarters of a century ago, when in Hahn v. Claybrook, 130 Md. 179, 100 A. 83 (1917), it was announced that in medical malpractice cases the cause of action accrues when the wrong is discovered or when with due diligence it should have been discovered. Over the subsequent decades, the rule has spread beyond application solely to the learned professions so as to embrace malpractice in all callings encompassed within the continuously expanding concept of "profession." See Harig v. Johns-Manville Products, supra 284 Md. at 73-74, 394 A.2d at 304, and Leonhart v. Atkinson, supra 265 Md. at 224, 289 A.2d at 4, and cases cited in each. Thus, since "the 'discovery rule' has been consistently extended so that now it is clearly applicable to all cases involving professional malpractice," id., one of the principal inquiries focuses on whether the particular occupation involved in the case constitutes a "profession."

Reasoning that "(l)ike the victim of undiscoverable malpractice a person incurring disease years after exposure cannot have known of the existence of the tort until some injury manifests itself," this Court just three years ago in Harig v. Johns-Manville Products, supra, 284 Md. at 80, 394 A.2d at 305, extended the discovery rule beyond malpractice actions to suits involving latent disease. In doing so, we noted that a growing number of our sister states had recognized that, in many cases not involving professional malpractice, "plaintiffs may, in appropriate circumstances, 'be blamelessly ignorant' of the fact that a tort has occurred and thus, ought not be charged with slumbering on rights they were unable to ascertain." Id. at 83, 394 A.2d at 306. Moreover, Harig does not represent the first time we have applied the discovery rule beyond cases involving professional malpractice, for we have previously utilized the rule in a case involving faulty construction. See Callahan v. Clemens, 184 Md. 520, 41 A.2d 473 (1945). See also Steelworkers Holding v. Menefee, 255 Md. 440, 258 A.2d 177 (1969); Mettee v. Boone, 251 Md. 332, 247 A.2d 390 (1968). So, as we noted a little more than a year ago in again utilizing the discovery rule in a non-professional malpractice context, "fairness to a plaintiff who has not slept on his rights justifies exceptions to (the) general rule." Sears, Roebuck & Co. v. Ulman, 287 Md. 397, 401, 412 A.2d 1240, 1242 (1980) (defamation action for false credit report). Cf., Goldstein v. Potomac Elec. Power Co., 285 Md. 673, 404 A.2d 1064 (1979). Furthermore, in Harig we suggested that "(a)voiding possible injustice in such cases outweighs the desire for repose and administrative expediency, which are the primary underpinnings of the limitations statute." Harig, 284 Md. at 80, 394 A.2d at 305.

Having already broken the barrier confining the discovery principle to professional malpractice, and sensing no valid reason why that rule's sweep should not be applied to prevent an injustice in other types of cases, we now hold the discovery rule to be applicable generally in all actions and the cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong.

In the case before us the respondent seems to concede, as a reading of the record clearly indicates he should, that unless constructive notice gained through the plats and deeds recorded among the land records of Washington County precludes a finding that the wrong was inherently unknowable at the time the building of the house commenced (and thus satisfied the requisite "known or should have known" requirement), there exists sufficient factual controversy to prevent summary judgment. It follows, on the other hand, that if constructive notice provides sufficient discovery to trigger the running of the time bar enactment, as the respondent argues, summary judgment was properly entered in this case.

This issue posed by builder Risser causes us to focus on the nature of the knowledge necessary, under the discovery rule, to start the running of the limitations period. With respect to the acquisition of knowledge, Judge McSherry in speaking for this Court nearly a century ago said:

Notice is of two kinds actual and constructive. Actual notice may be either express or implied. If the one, it is established by direct evidence, if the other, by the proof of circumstances from which it is inferable as a fact. Constructive notice is, on the other hand, always a presumption of law. Express notice embraces not only knowledge, but also that which is communicated by direct information either written or oral, from those who are cognizant of the fact communicated. Implied notice, which is equally actual notice, arises where the party to be charged is shown to have had knowledge of such facts and circumstances as would lead him, by the exercise of due diligence, to a knowledge of the principal fact.... It is simply circumstantial evidence from which notice may be inferred. It differs from constructive notice, with which it is...